I posted a few days ago about a new U.S. Supreme Court decision that basically affirmed the unntouchable sanctity of breathalyzers in DUI cases. See U.S. Supreme Court Bans Scientific Evidence of Breathalyzer Inaccuracy. The Court let stand a California Supreme Court ruling that these machines were foolproof: the devices had been approved by state bureaucrats and therefore those accused of drunk driving were not permitted to produce scientific evidence that contradicted these sacred devices.
Essentially, the Court banned scientific evidence — testimony of top scientists in the field — that questioned the general reliability or accuracy of governmentally-aaproved breath machines. As a result, innocent citizens will continue to be convicted by these untouchable black boxes.
An excellent discussion of this entire fiasco can be found at the criminal justice blog, “Simple Justice”. In a post entitled “We’ll Never Know What’s Behind the Curtain”, Scott H. Greenfield writes at length about this very distrubing issue…a small portion of which follows:

Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison. When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law. There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.

In time, the magic science of the box became the subject of scrutiny. Experts questioned its accuracy, both internally and theoretically. After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood. It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.

Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages. And this black box made it easy-peasy to nail the culprits.

And then there was the question of why the digital readout number was a real number in any event. Courts blindly relied on the integrity of the magic box, because it seemed very sciency and lawyers love science, even if we know nothing about it. It removes the dilemma of having to think too hard about evidence. Thinking too hard gives people headaches. So does booze. Headaches are bad. Stop the headaches…

But there was a chance, a tiny crack, that we could revisit the efficacy of the beloved black box when a petition for a writ of certiorari was submitted to the Supreme Court of the United States in the case of Terry Vangelder out of San Diego.

The case comes from San Diego County, where Terry Vangelder was stopped by a highway patrolman in December 2007 after driving his pickup truck at speeds of more than 125 mph. With Vangelder’s consent, the officer administered two breath tests that registered .095 and .086 percent.

At Vangelder’s trial, the defense offered testimony by Michael Hlastala, a University of Washington professor of medicine and physiology. He said breath-testing machines are unreliable because they measure the content of exhaled air, which can be affected by the rate of breathing and other variables, rather than air that is deep in the lungs and closer to the bloodstream.

Vangelder’s lawyer, Charles Sevilla, argued that the California ruling was “unduly trusting in the infallibility of government testing of these machines.” Unduly, as in the box was handed down to Moses on Mt. Sinai…

That argument was, as we now know, rejected by the Court. Thus, the black box continues to be immune to question. Or, as Greenfield writes, “No peeking behind that curtain. The black box retains its magic.”
Unchallenged, the box will continue to send innocent citizens to jail.

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